Courts will have to decide on SABC editorial policy in landmark case

Does the public broadcaster have the right to sit on an investigation that is in the public interest? It’s something that the courts will have to decide.

Documentary producer Sylvia Vollenhoven has taken legal action against the SABC, filing a massive 77-page affidavit with 46 annexures in response to the shelving of her documentary about apartheid banking corruption, Project Spear.

It’s a potentially landmark case, the first in which a producer has brought action against the public broadcaster over its editorial policy.

According to the papers lodged in the South Gauteng High Court, the SABC approved of Vollenhoven’s script and each stage of its development, making payments as the doccie progressed.

Project Spear tells the story of vast sums of money siphoned from state coffers by apartheid-era bankers, officials and politicians. A large portion of it was paid to Volkskas bank, which was later amalgamated into Absa.

Although a former MI6 spy offered the South African government a plan to recover the funds, the ANC allegedly did not take action to bring these apartheid leaders to book.

But once it was delivered the SABC’s acting head of factual genre, Thando Shozi, emailed Vollenhoven saying that there was a problem.

She did not think, Shozi wrote, that “the current government would take kindly to insinuations of statements” that they had an opportunity to recover money taken from government by several banks – but didn’t.

“Why don’t we get to hear the government’s view on the issues raised?” asks Shozi, in an email that forms part of Vollenhoven’s court documents.

Vollenhoven states in papers before court that she offered countless government officials the right to reply, but all declined.

The court case is about more than just editorial leanings, though.

It also speaks to the SABC’s contracts, the Copyright Act and the Constitution.

The SABC owns the copyright on TV programmes it commissions. But what if it decides not to broadcast a programme – and also doesn’t sell it or exploit its copyright?

Is that a violation of the Copyright Act and of Vollenhoven’s right to freedom of expression?

According to Vollenhoven’s affidavit, it is.

Copyright is there to protect the author, not the corporation, she argues in her affidavit.

Her contract says that if the SABC does not screen a show it should give her the first right to buy it back from them.

The SABC, says Vollenhoven, refused to sell it. And the broadcaster then brought legal action against her demanding the film and research.

“We’ve brought a counterapplication asking the court to set aside the SABC’s decision not to broadcast and not to sell,” says Sheldon Magardie of the Legal Resources Centre, which has taken up the case.

“We are asking for a review of SABC’s contract,” he added.

But the bigger matter is whether the Copyright Act is constitutional if it allows the SABC as copyright owner to “unjustifiably limit the rights to freedom of expression” of the copyright author, Vollenhoven.

For her part, Vollenhoven says the battle has taken a personal toll on her, but she is “amazed and gratified by the brave case” put forward by Magardie and his team.

She told City Press the case was crucial as “the SABC is trying to roll back the freedoms we fought so hard to achieve”.

The SABC’s CEO, Lulama Mokhobo, said that she would be looking at the case and the contract, but that “we will most likely allow the courts to lead us”.

SABC has been criticised for its huge legal spend in the past few years.

Vollenhoven’s case is backed by the Freedom of Expression Institute and the Committee to Protect Journalists.

They have been joined by the Khulumani Support Group, whose director, Marjorie Dobson, said the group will be filing an amicus curiae (friend of the court) brief in support.

She added that Khulumani will be looking at how to take legal action against some of the banks in question to try to recover the missing funds – estimated at R30 billion in today’s terms – and place them in a trust for victims of apartheid.

Filing Sheet and Pages 1-30 of Answering Affidavit

Batch 2 - Pages 31-60 of Answering Affidavit

Batch 3 - Pages 61-77 of Answering Affidavit

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